Two-day Bharat Bandh in India: Are you allowed to hold a forced hartal in the country?

A two-day nationwide strike, starting today, called by a joint forum of trade unions is expected to cripple some essential services, including banking services, electricity, transportation and railways.

All Indian Trade Union Congress General Secretary Amarjeet Kaur was quoted telling news agency PTI, “We are expecting participation of over 20 crore formal and informal workers with mass mobilisation of workers across the country during the strike on 28 and 29 March to protest against government policies.”

Also read: Two-day Bharat bandh starts today: Here's your guide to what's open and what's not

The bandh was called by the different trade unions after a meeting on 22 March. The unions said they would protest against the Centre’s “anti-worker, anti-farmer, anti-people and anti-national policies.” The Bank unions also extended their support and protest due to the government’s execution plan to privatise public sector banks and the Banking Laws Amendments Bill 2021.

However, what’s the legal status of bandhs? Are they legal? We take a look at the constitutionality of bandhs and what it means to carry out a hartal in the country.

Right to protest

Before delving into the constitutionality of a bandh, here’s what a bandh means. Bandh is a protest that is used mainly by political activists in South Asian countries like India. It is a form of civil disobedience.

The right to strike exudes from Article 19 (1) (c) of the Indian Constitution, which gives the citizens the fundamental right to form associations or unions. Article 19(1) (a) secures every citizen the right to freedom of speech and expression.

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Article 19 of the Constitution doesn’t explicitly give any fundamental right on a resident or citizens to organise a hartal, bandhs or chakka jam.

The Supreme Court has many times asserted that demonstrations can be considered a form of freedom of speech unless they violate the public order.

What the courts have to say

In 1961, the apex court held in Kameshwar Prasad v State of Bihar case that even a liberal interpretation of the Article 19(1)(c) would conclude that trade unions would guarantee the fundamental right to strike.

However, later in the All India Bank Employees Association case, the Supreme Court rejected the contention that right to ‘form associations’ guaranteed by Article 19(1)(c) carried with it a right to strike.

In 2003, the Supreme Court in the TK Rangarajan vs Tamil Nadu government case made it clear that government employees cannot go on strike and that such an act is illegal.

The order had read: “Coming to the question of right to strike - whether fundamental, statutory or equitable moral right - in our view, no such right exists with the government employees. Law on this subject is well settled and it has been repeatedly held by this court that the employees have no fundamental right to resort to strike.”

Justice MB Shah added in his order: “Apart from statutory rights, government employees cannot claim that they can take the society to ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare state, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances.

“Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many students are prevented from appearing in their exams, which ultimately affect their whole career. In case of strike by doctors, innocent patients suffer; in case of strike by employees of transport services, entire movement of society comes to a stand still; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among public against those who are on strike.”

In 1997, a full bench of the Kerala High Court had banned bandhs, which had been vehemently opposed by the Communist Party of India (Marxist) and its partners in the Kerala government.

The court had also held that organisers of the bandhs are liable to compensate the Government, the public and private citizens for any losses they suffer on account of destruction of property during the bandhs.

The Supreme Court also upheld the order banning bandhs later that year.

Bandh organisers eventually started calling mass strikes hartals instead. The Supreme Court in 2004 stated that inconvenience could not be caused in the name of hartal either.

But, confusion continues over the constitutionality of a bandh as the courts haven’t clarified the difference between a strike, bandh and hartal.

In April 2017, a bench of Chief Justice JS Khehar and Justice D Y Chandrachud had noted in a case that “hartals could never be considered unconstitutional”.

“The Right to Protest is a valuable constitutional right. How can we say hartals are unconstitutional,” they had said.

Time and time again, it has been noted that bandhs have a staggering effect on the economy.

In the past, business chambers have pegged the loss to the economy at a staggering Rs 25,000 crore and have said such “disruptive” actions can hit India’s image as an attractive business destination.

With inputs from agencies

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